MISS DIG Act Claims Against Governmental Agencies: Public Service Commission Process Is the Sole Immunity-Avoiding Remedy; SDSE Amendment Requires Pleading Notice Compliance

Case: Brian Zezula v. Nina Brown, No. 168483 (Mich. June 16, 2026) (Thomas, J., unanimous)
Court: Supreme Court of Michigan
Key Statutes: GTLA, MCL 691.1401 et seq.; MCL 691.1407(7); SDSE exception, MCL 691.1416–.1419; MISS DIG Act, MCL 460.721 et seq.; MCL 460.728; MCL 460.732

1. Introduction

This decision sits at the intersection of Michigan’s governmental immunity framework and statutory duties imposed on underground facility owners under the MISS DIG Underground Facility Damage Prevention and Safety Act. Plaintiff Brian Zezula sought tort damages after sewage backed up into his home when a sewer line was allegedly damaged during boring work performed to install a new underground electrical service for a neighbor (Nina Brown). DTE Energy hired Kaltz Excavating Co. to perform the work. Kaltz’s MISS DIG notice triggered locate/marking responses from facility owners, including Independence Township. Independence Township replied “NO CONFLICT,” did not mark sewer infrastructure, and Zezula alleged that failure violated the MISS DIG Act and caused his loss.

The central issues were:

• MISS DIG/Immunity issue: Whether MCL 691.1407(7) allows a plaintiff to sue a governmental agency in circuit court for money damages for an alleged MISS DIG Act violation, or whether the MISS DIG Act confines immunity-avoiding relief to an administrative complaint before the Public Service Commission (PSC) under MCL 460.732.
• SDSE amendment issue: Whether the trial court properly granted Zezula leave to amend to plead the SDSE exception before Zezula alleged compliance (or excuse) with SDSE notice requirements under MCL 691.1419.

2. Summary of the Opinion

The Supreme Court reversed in part and vacated in part. It held that:

• No circuit-court damages claim under MCL 691.1407(7) for MISS DIG violations: The GTLA provision stating immunity “does not apply to liability of a governmental agency under the MISS DIG Act” does not itself create a circuit-court cause of action for monetary damages. Instead, the “liability ... under the MISS DIG Act” is defined and limited by MCL 460.732, which provides an administrative complaint mechanism before the PSC as the sole immunity-avoiding pathway.
• Premature SDSE amendment: The trial court abused its discretion by granting leave to amend to assert the SDSE exception while holding the notice question “in abeyance.” Because SDSE notice is a statutory precondition to recovery and Independence Township raised lack of notice, the court could not assess futility without addressing notice compliance or excuse.

3. Analysis

3.1 Precedents Cited

A. Standards for immunity-based summary disposition and record review

• Maiden v Rozwood, 461 Mich 109 (1999): Cited for how MCR 2.116(C)(7) motions may be supported and that complaint allegations are taken as true unless contradicted by documentary evidence. The Court used Maiden (via later authority) to frame the procedural posture and de novo review of immunity issues.
• Sunrise Resort Ass'n, Inc v Cheboygan Co Rd Comm, 511 Mich 325 (2023): Cited repeatedly for (i) de novo review of (C)(7) decisions, (ii) the “broad” nature of governmental immunity, and (iii) the rule that statutory exceptions are “narrowly construed.” This case provided the interpretive lens: ambiguous pathways to liability are not expanded against governmental agencies.

B. Core governmental immunity framework

• Nawrocki v Macomb Co Rd Comm, 463 Mich 143 (2000): Cited for the foundational principle that governmental immunity is broad and exceptions are narrowly construed.
• Fane v Detroit Library Comm, 465 Mich 68 (2001): Cited for the plaintiff’s burden to allege facts justifying an exception to immunity.

C. Statutory interpretation methodology

• Janetsky v Saginaw Co, ___ Mich ___ (July 25, 2025): Cited for the “primary goal” of statutory interpretation (legislative intent from statutory language) and reading words in context harmoniously.
• Milne v Robinson, 513 Mich 1 (2024) and People v Mazur, 497 Mich 302 (2015): Cited for the in pari materia approach—reading related statutes together to form a harmonious body of law. This underwrote the Court’s decision to interpret MCL 691.1407(7) together with the MISS DIG Act provisions it references.
• Alan v Wayne Co, 388 Mich 210 (1972) and People v Kern, 288 Mich App 513 (2010): Cited for the incorporation principle—when one statute explicitly refers to another, the referenced provisions are treated as incorporated. Here, that meant MCL 691.1407(7)’s reference to “liability ... under the MISS DIG Act” imported the MISS DIG Act’s own limits on governmental liability (especially MCL 460.732).
• Johnson v Recca, 492 Mich 169 (2012) and State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142 (2002): Cited for the anti-surplusage canon (avoid readings that render statutory language superfluous). This canon drove the rejection of an interpretation that would make MCL 460.732(1)’s limitation meaningless.
• Miller v Dep't of Corrections, 513 Mich 125 (2024): Cited for the rule that when statutes conflict, the more specific provision prevails over the general. Applied to treat MCL 460.732 (government-agency liability) as controlling over MCL 460.728’s general “civil action” language.

D. Prior MISS DIG/underground facility liability understanding

• State Farm Fire & Cas Co v Corby Energy Servs, Inc, 271 Mich App 480 (2006): Cited as historical context that the former underground facilities act exempted governmental agencies from liability, supporting the inference that the carryover-style “civil remedies” language (now MCL 460.728) was not drafted to open governmental agencies to ordinary tort damages.

E. Interpreting “may” and remedy exclusivity

• True Care Physical Therapy, PLLC v Auto Club Group Ins Co, 347 Mich App 168 (2023): Cited to acknowledge that “may” can, in some contexts, suggest nonexclusivity—then distinguished.
• James Twp v Rice, 509 Mich 363 (2022), In re Malloy Guardianship, 513 Mich 148 (2024), and Northville Charter Twp v Northville Pub Sch, 469 Mich 285 (2003): Cited to emphasize that “may” is ordinarily permissive but courts must identify what the statute makes discretionary by considering legislative scheme and intent; not merely word-searching.

F. Amendment standards, futility, and SDSE notice as a precondition

• Miller v Chapman Contracting, 477 Mich 102 (2007) and Hakari v Ski Brule, Inc, 230 Mich App 352 (1998): Cited for the principle that leave to amend should be freely given, but can be denied for particularized reasons including futility.
• Ormsby v Capital Welding, Inc, 471 Mich 45 (2004) and Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1 (2008): Cited for abuse-of-discretion review and the “range of principled outcomes” standard; used to find the trial court’s timing decision unprincipled given the unresolved notice precondition.
• Hope Network Rehab Servs v Mich Catastrophic Claims Ass'n, 342 Mich App 236 (2022) and Kostadinovski v Harrington, 321 Mich App 736 (2017): Cited for the definition of futility—an amendment is futile if legally insufficient on its face regardless of substantive merits.
• Linton v Arenac Co Rd Comm, 273 Mich App 107 (2006): Cited for the proposition that, to maintain an SDSE claim, a plaintiff must show the statutory conditions and must show compliance with MCL 691.1419 notice.
• Weymers v Khera, 454 Mich 639 (1997): Cited for the general rule (mirroring MCR 2.118(A)(2)) that leave to amend “shall be freely given when justice so requires.”
• Anton, Sowerby & Assoc, Inc v Mr C's Lake Orion, LLC, 309 Mich App 535 (2015): Cited to underscore the practical procedural requirement that amendments should be submitted in writing because courts cannot assess justification/futility without a proposed amended pleading.

3.2 Legal Reasoning

A. What MCL 691.1407(7) actually does—and does not—do

The Court’s central move was to treat MCL 691.1407(7) not as a “free-standing” tort-liability portal into circuit court, but as a narrow immunity carve-out whose scope is defined by the statute it references. Because the GTLA says immunity does not apply to “liability ... under the MISS DIG Act,” the Court reasoned (relying on incorporation principles from Alan v Wayne Co and People v Kern) that one must ask: what “liability” does the MISS DIG Act itself authorize against governmental agencies?

The Court found the answer in MCL 460.732:

By structuring governmental-agency consequences inside a dedicated, detailed administrative enforcement section—and by prefacing it with “except as provided in this section”—the Legislature signaled that the PSC process is the sole immunity-avoiding remedial track. The Court reinforced this by applying:

• Anti-surplusage (Johnson v Recca; State Farm Fire & Cas Co v Old Republic Ins Co): A reading that allows ordinary tort damages in civil court would nullify the “except as provided in this section” limitation in MCL 460.732(1).
• Specific-over-general (Miller v Dep't of Corrections): Even if MCL 460.728 broadly preserves “civil action” remedies, MCL 460.732 is the more specific provision governing governmental agencies and therefore controls.
• Narrow construction of immunity exceptions (Sunrise Resort Ass'n, Inc v Cheboygan Co Rd Comm; Nawrocki v Macomb Co Rd Comm): Ambiguity is not resolved by expanding governmental exposure.

B. Why MCL 460.728 did not open the courthouse door against municipalities

The Court rejected reliance on MCL 460.728 (civil actions not limited) for two main reasons:

• Text and structure: MCL 460.728 is general; it does not specifically address suits against governmental agencies. Applying it to governmental agencies would collide with and effectively erase MCL 460.732(1)’s limiting clause.
• Statutory history: The Court noted MCL 460.728 was a version of a carryover concept from the prior underground facilities act, which (per State Farm Fire & Cas Co v Corby Energy Servs, Inc) exempted governmental agencies. That history made it less plausible that the general “civil action” language was intended to create (or revive) broad municipal tort damages.

C. The “may file a complaint” argument and the Court’s scheme-based response

Zezula and Kaltz argued that because MCL 460.732(2) says a facility owner/operator “may” file a PSC complaint—and does not say that the PSC remedy is “exclusive”—the statute leaves room for civil court damages. The Court rejected this as a misreading of what “may” makes optional.

Using James Twp v Rice, In re Malloy Guardianship, and Northville Charter Twp v Northville Pub Sch, the Court treated “may” as granting discretion only as to whether to pursue the PSC complaint at all; it does not imply an alternative civil-court remedy that would undermine MCL 460.732(1) and the carefully staged penalty scheme in MCL 460.732(3).

D. SDSE amendment: notice is not a side issue—it is a gatekeeping element

On the SDSE exception, the Court emphasized that MCL 691.1419 imposes a strict notice precondition: written notice of a claim within 45 days of discovering the damage. The statute includes a limited “excuse” concept only where the plaintiff timely notified a “contacting agency” of an event and the agency failed to provide required information on how to comply with the notice requirement (MCL 691.1419(2)–(3)).

Importantly, the Court framed notice as integral to evaluating whether amendment would be futile. Because Independence Township raised lack of notice and Zezula did not address it, the trial court could not responsibly grant amendment while postponing the notice determination. Under Linton v Arenac Co Rd Comm, a claimant “must show” notice compliance to maintain an SDSE claim; therefore, amendment without pleaded (or at least proffered) compliance/excuse risked being legally insufficient on its face (futility principles drawn from Hope Network Rehab Servs v Mich Catastrophic Claims Ass'n and Kostadinovski v Harrington).

3.3 Impact

A. A clear channeling rule for MISS DIG claims against governmental agencies

The most significant doctrinal change is the Court’s definitive channeling of immunity-avoiding remedies for governmental MISS DIG violations into the PSC process under MCL 460.732. Practically, this means:

• For plaintiffs and non-government defendants seeking contribution/shifted fault: Alleged municipal failures to mark/locate under MISS DIG cannot simply be pleaded as a tort damages claim in circuit court to circumvent GTLA immunity; the correct route is the PSC complaint mechanism when the claimant fits within MCL 460.732(2) (“facility owner” or “facility operator”).
• For trial courts: MCL 691.1407(7) must be read as an immunity carve-out only to the extent the MISS DIG Act itself creates “liability”—which, for governmental agencies, is cabined in MCL 460.732.

B. Litigation sequencing discipline for SDSE cases

The SDSE portion of the decision signals that courts should not treat SDSE notice as a curable technicality to be sorted out later. When notice is challenged, futility analysis for amendment should be addressed head-on. This will likely:

• Increase early motion practice focused on MCL 691.1419 compliance/excuse;
• Encourage plaintiffs to plead SDSE notice facts (or statutory excuse facts) with specificity from the outset;
• Reduce grants of leave to amend that postpone statutory preconditions while keeping governmental entities in the case.

4. Complex Concepts Simplified

• Governmental immunity (GTLA): A default rule that governmental agencies are not liable in tort for governmental functions unless a statute clearly creates an exception.
• “Exception narrowly construed”: If the statute does not clearly open the government to the kind of lawsuit being filed, courts will not infer that openness.
• In pari materia: When statutes address the same subject, courts interpret them together so they fit as one coherent scheme.
• Surplusage canon: Courts avoid interpretations that make statutory words meaningless. Here, allowing broad civil damages would make MCL 460.732(1)’s limitation (“except as provided in this section”) effectively pointless.
• Administrative remedy (PSC complaint): Instead of suing in court, the statute routes certain disputes to an agency process. The PSC can impose fines and, under limited conditions, damages-type relief as specified in MCL 460.732(3).
• SDSE notice requirement: A short deadline (45 days after discovery) to give written notice of a claim to the governmental agency; without it, recovery is barred unless the statute’s limited excuse provisions apply.

5. Conclusion

Zezula v Brown establishes two clarifying rules with broad practical consequences. First, MCL 691.1407(7) does not authorize circuit-court monetary damages claims against governmental agencies for alleged MISS DIG Act violations; the MISS DIG Act itself confines immunity-avoiding governmental “liability” to the PSC complaint process under MCL 460.732. Second, trial courts should not grant leave to amend to plead the SDSE exception while deferring the statutory notice inquiry; when notice is disputed, courts must evaluate whether amendment is futile in light of MCL 691.1419’s gatekeeping requirements.